People v. Lowe CA5 ( 2023 )

Filed 1/26/23 P. v. Lowe CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082437
Plaintiff and Respondent,
(Super. Ct. Nos. F20902508,
v. F19905894)
RUSSELL LEE LOWE,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. David
Andrew Gottlieb, Judge.
Kathleen Sherman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric
L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Appellant Russell Lee Lowe was convicted by jury of felon in possession of a
firearm (Pen. Code,1 § 29800, subd. (a)(1)) and felon in possession of a short-barreled
rifle or shotgun (§ 33215). Lowe admitted he had suffered a prior strike conviction
within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)), and the trial court found Lowe in violation of his probation in case No. F19905894.
The trial court sentenced Lowe to a prison term of two years eight months. Lowe’s
motion for constructive filing of his notice of appeal and consolidation of cases was
granted by this court.
On appeal, Lowe contends: (1) the trial court erred in denying his motion to
suppress (§ 1538.5); (2) the trial court abused its discretion by declining to strike his prior
strike conviction following consideration of his Romero2 motion; and (3) the trial court
erred by imposing a $300 restitution fine (§ 1202.4) after determining Lowe lacked the
ability to pay the court facilities assessment (Gov. Code, § 70373) and the court
operations assessment (§ 1465.8), or alternatively, trial counsel committed ineffective
assistance of counsel by failing to object to imposition of the restitution fine. We affirm.
PROCEDURAL HISTORY
On August 12, 2020, the Fresno County District Attorney’s Office filed an
information charging Lowe with felon in possession of a firearm (§ 29800, subd. (a)(1),
count 1); felon in possession of a short-barreled rifle or shotgun (§ 33215, count 2);
carrying a concealed firearm, with a special allegation that Lowe was not the registered
owner of the concealed weapon and that it was loaded or ammunition was readily
available (§§ 25400, subds. (a)(2), (c)(6), count 3); and carrying a loaded firearm in
1 All further undefined statutory citations are to the Penal Code unless otherwise
indicated.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2.
public, with a special allegation that Lowe was not the registered owner of the loaded
weapon (§§ 25850, subds. (a), (c)(6), count 4). The information further alleged that
Lowe had suffered a prior serious felony conviction (§§ 667, subds. (b)-(i) &1170.12,
subds. (a)-(d)), and that he had violated his probation in case No. F19905894.
On September 22, 2020, Lowe filed a motion to suppress pursuant section 1538.5.
The District Attorney filed a brief in opposition.
On October 28, 2020, following a contested hearing, the trial court denied Lowe’s
motion.
On December 4, 2020, count 4 and the special allegation alleged in count 3 were
dismissed on the prosecution’s motion.
On December 7, 2020, a jury found Lowe guilty of felon in possession of a
firearm (§ 29800, subd. (a)(1)) and felon in possession of a short-barreled rifle or shotgun
(§ 33215). The District Attorney dismissed count 3.
On February 4, 2021, the trial court denied Lowe’s Romero motion. The trial
court sentenced Lowe to a prison term of two years eight months on counts 1 and 2,
which represents the low term of 16 months, doubled for Lowe’s prior strike. Lowe’s
sentence on count 2 was stayed pursuant to section 654. The trial court sentenced Lowe
to a prison term of two years on his probation violation (case No. F19905894), to run
concurrently with his sentence in the instant case.
At sentencing, the trial court imposed a $300 parole revocation restitution fine
(§ 1202.4), and a matching restitution fund fine (§ 1202.45), which was stayed.
However, the court declined to impose a court operations fee (§ 1465.8) and a criminal
conviction fee (Gov. Code, § 70373) based upon Lowe’s “inability to pay.”
On February 23, 2021, Lowe filed a notice of appeal, identifying only case No.
F20902508.
3.
On August 24, 2021, this court granted Lowe’s motion for constructive filing of
notice of appeal and for consolidation of his cases on appeal, deeming the notice of
appeal to include case No. F19905894.
STATEMENT OF FACTS
The following statement of facts is derived from testimony adduced at the hearing
on Lowe’s motion to suppress:3
On April 15, 2020, at approximately 9:35 a.m., Officers Robert Saenz and Drew
Vanzant with the Fresno Police Department were on patrol in the area of Voorman
Avenue and Divisadero Street in Fresno. The area is a high crime area, known for
drinking, theft, property crimes, and vehicle thefts, which Officer Saenz had personally
encountered during his patrols.
The officers observed a Honda Civic parked in a dirt field behind Lum’s Chinese
Restaurant, which was closed. Officer Vanzant testified that the Honda was parked
illegally because “[i]t wasn’t parked in the stalls. It was just parked in the middle of the
dirt area.” The parking lot was vacant and no one appeared to be around. The vehicle
was occupied.
As they were pulling up to the vehicle, Officer Vanzant conducted a computer
search of the vehicle’s license plate through the California Department of Motor
Vehicles, which showed the Honda’s registration was expired.4 Before they stopped their
patrol vehicle, Officer Saenz observed Lorena Ledesma exit the driver’s side of the
3 In considering the merits of the trial court’s ruling on Lowe’s motion to suppress,
our review is limited to the evidence before the court when it considered the motion.
(People v. McKim (1989) 214 Cal.App.3d 766, 768, fn. 1.)
4 Officer Vanzant testified that Officer Saenz activated his emergency lights, but he
could not remember whether this occurred before or after discovering that the Honda’s
registration was expired. Officer Saenz testified that he did not activate his emergency
lights.
4.
vehicle. Officer Saenz had numerous prior contacts with Ledesma. He explained
Ledesma is a habitual alcoholic and he frequently has to instruct her to move along and
not drink in the alleyway. He stated that Ledesma is also a known transient who does not
own a vehicle. The officers also observed a man bent over and halfway inside the
floorboard area of the front passenger’s side of the vehicle with his legs outside of the
vehicle.
Officer Saenz exited his patrol vehicle and contacted the vehicle’s occupants to
determine whether the vehicle was stolen. Officer Saenz testified that based upon his
training and experience, Honda vehicles are among the most commonly stolen vehicles in
the City of Fresno. According to Officer Saenz, Honda vehicles are particularly
susceptible to the use of shaved keys and their ignitions can be easily overridden.
Officer Vanzant approached the passenger side of the vehicle and contacted the
male occupant. The man identified himself as Russell Lowe. Lowe was unable to
furnish his identification.
Officer Saenz immediately recognized Lowe from a prior contact. He knew that
Lowe was on probation, but he could not recall Lowe’s name. Officer Saenz ran Lowe’s
name through the computer in his patrol vehicle, which permits authorized users to check
on the probation status and provides other notes for a given individual through the Fresno
County Probation Department’s website. He confirmed that Lowe was in fact on
probation and was “open to search and seizure.”
Officer Vanzant also testified that consistent with his regular practice, he ran
Lowe’s name and date of birth through dispatch and learned that Lowe was on felony
probation for dissuading a witness.
Based upon Lowe’s probation search condition, the officers conducted a search of
the Honda to determine whether Lowe was complying with the terms of his probation.
Officer Vanzant stayed with Lowe and the two female occupants of the vehicle at the rear
5.
of the Honda, while Officer Saenz conducted a search of the front passenger seat area of
the vehicle. Officer Saenz searched a black backpack sitting on top of the front
passenger’s seat, which was within arm’s reach of Lowe.
Inside the black backpack, Officer Saenz found a .20-gauge sawed-off shotgun
and three shotgun shells. Lowe admitted the contents of the backpack, which also
included male clothing, were his.
Lorraine Rodriguez, the registered owner of the Honda, was present. She did not
object to Lowe’s presence in the vehicle.
During the hearing, the trial court took judicial notice of case ending “894” as
further evidence of the fact that Lowe was on probation at the time of the search.
The Trial Court’s Ruling
On October 28, 2020, following a contested hearing, the trial court denied Lowe’s
motion to suppress, stating:
“[THE COURT:] Having taken that all into consideration,
the Court does find that the People have met their burden of proof in
this matter. I would note that there was a reasonable suspicion of
criminal activity based upon the totality of the circumstances known
to the officers as testified to, specifically testimony that this was a
high crime area, that at least one of the officers was aware of one of
the individuals by the vehicle as a transient person, that the vehicle
was, even if parked legally, was in a parking lot of a closed business,
the passenger door of the vehicle was open with a person leaning
into the vehicle, and that the vehicle is one known to the officers to
be a target of theft, susceptible of theft. Upon first contact the
officer may not have known the defendant’s name, but was aware of
the defendant and believed from prior contacts that the defendant
was a person on probation and that he confirmed that fact after
running the defendant’s name, apparently confirmed the fact that he
was on probation and under search and seizure conditions. And
therefore, based upon the totality of all of that, the Court does not
find that there’s been any illegal detention, arrest, search or seizure
in this matter which would be subject to suppression and the
6.
suppression motion is denied on each of the grounds raised by the
defense.”
ANALYSIS
I. The Denial of Lowe’s Motion to Suppress
Lowe contends the trial court erred in denying his motion to suppress. We
conclude the detention and search were lawful under the Fourth Amendment.
A. Standard of Review
A defendant who brings a motion to suppress has the initial burden of proving a
warrantless search or seizure occurred. (People v. Flores (2019) 38 Cal.App.5th 617,
626.) “There was no warrant in this case, so the burden shifted to the prosecution to
show any warrantless searches or seizures were justified under the Fourth Amendment to
the United States Constitution.... ‘[T]he controlling burden of proof at suppression
hearings ... [is] proof by a preponderance of the evidence.’ (United States v. Matlock
(1974) 415 U.S. 164, 178, fn. 14 .…)” (Ibid.)
In reviewing the denial of a suppression motion, we “view the evidence in a light
most favorable to the order denying the motion to suppress” and “ ‘ “must accept the trial
court’s resolution of disputed facts and its assessment of credibility.” ’ ” (People v.
Frederickson (2020) 8 Cal.5th 963, 1010.) “[W]hile we defer to the superior court’s
express and implied factual findings if they are supported by substantial evidence, we
exercise our independent judgment in determining the legality of a search on the facts so
found.” (People v. Woods (1999) 21 Cal.4th 668, 673-674; People v. Glaser (1995) 11
Cal.4th 354, 362; People v. Lomax (2010) 49 Cal.4th 530, 563.) “Where there are no
express findings of fact, we imply whatever findings are necessary to support the order.”
(People v. Flores (2021) 60 Cal.App.5th 978, 988.)
B. Reasonable Suspicion to Detain
Lowe claims Officers Saenz and Vanzant lacked reasonable suspicion to detain
him. Viewing the facts in the light most favorable to the trial court’s ruling, as we must
7.
(People v. Frederickson, supra, 8 Cal.5th at p. 1010), we conclude the detention was
supported by reasonable suspicion.
1. Legal Principles
“The Fourth Amendment to the United States Constitution prohibits seizures of
persons, including brief investigative stops, when they are ‘unreasonable.’ (Terry v. Ohio
(1968) 392 U.S. 1, 19 & fn. 16 .…) Our state Constitution has a similar provision. (Cal.
Const., art. I, § 13.)” (People v. Souza (1994) 9 Cal.4th 224, 229.)
“[T]he police can stop and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable facts that criminal activity
‘may be afoot,’ even if the officer lacks probable cause.” (United States v. Sokolow
(1989) 490 U.S. 1, 7 (Sokolow).) “[T]he detaining officer [must] point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.” (Souza, supra, 9 Cal.4th at p. 231.) “The officer’s ... suspicion must be
objectively reasonable, and ‘an investigative stop or detention predicated on mere
curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete
good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity
exists, ‘the public rightfully expects a police officer to inquire into such circumstances
“in the proper exercise of the officer’s duties.” ’ ” (People v. Wells (2006) 38 Cal.4th
1078, 1083.)
2. Analysis
The trial court found the following facts justified reasonable suspicion to detain
Lowe: (1) the Honda was parked in a high crime area; (2) one of the individuals in the
vehicle was a known transient person; (3) the Honda was parked in the lot of a closed
business; (4) the passenger’s side door of the Honda was open with a person leaning into
the vehicle; (5) in the officers’ experience, Honda’s are frequently targeted for vehicle
theft.
8.
The precise sequence of events between the officers’ initial observation of the
Honda and their contact with Lowe is unclear from the record. Although the trial court
determined that a detention had occurred, the trial court never explicitly determined when
the detention commenced. However, based upon the trial court’s factual findings, and in
light of the court’s ruling denying Lowe’s motion to suppress, we can infer that the trial
court found that a detention commenced at some point following the observation of facts
which would justify reasonable suspicion to believe the Honda was stolen or was being
stolen.
Following our review of the record, we conclude that Officers Saenz and Vanzant
pointed to a set of articulable facts, which taken together, could objectively cause an
experienced officer to conclude that Lowe and his companions were engaged in criminal
activity, specifically, vehicle theft. As Officer Saenz and Vanzant were driving their
patrol vehicle, they observed a Honda parked in the dirt lot of a closed business, where no
one else was present, with a man bent over the passenger’s side floorboard. Further, a
woman known to officers not to have owned a vehicle was seen exiting the driver’s side
of the Honda. Officer Saenz testified that from his experience, the Honda was parked in
a high crime area that is known for vehicle thefts, and Honda vehicles are among the
most commonly stolen vehicles in the City of Fresno. Giving due weight to factual
inferences drawn by the trial court judge and the law enforcement officers (Ornelas v.
United States (1996) 517 U.S. 690, 699), we conclude that these facts established
reasonable suspicion to support the detention.
In reaching our conclusion, we are guided by the well-established standard
required to support a finding of reasonable suspicion. Reasonable suspicion requires
“ ‘some minimal level of objective justification’ ” that consists of “more than ‘inchoate or
unparticularized suspicion or “hunch,” ’ ” but “considerably less than proof of
wrongdoing by a preponderance of the evidence,” and “obviously less demanding than
that necessary for probable cause.” (Sokolow, supra, 490 U.S. at p. 7.) Upon these facts,
9.
we are persuaded that Officers Saenz and Vanzant were acting on more than an
“ ‘inchoate or unparticularized suspicion or “hunch” ’ ” (ibid.) when they detained Lowe.
Lowe contends the officers lacked reasonable suspicion to detain him for the
following reasons: (1) the officers did not initiate the detention because the Honda’s
registration was expired; (2) the officers did not discover the vehicle’s registration was
expired until after the detention had commenced; (3) there are no facts in the record
establishing that the Honda was illegally parked; (4) the officers lacked reasonable
suspicion to believe that the Honda was stolen; and (5) the fact that the area where the
encounter occurred was a high crime area was insufficient, without more, to justify the
detention.
Lowe’s first, second, and third claims pertain to whether the officers had
reasonable suspicion or probable cause to detain him based upon an observed violation of
the Vehicle Code. Because the trial court did not expressly or implicitly resolve
contested facts which would permit us to determine whether the detention was justified
on this basis, we do not reach this issue.
For example, the trial court did not determine whether Officers Saenz and Vanzant
activated their emergency lights and siren during the encounter, and if so, whether they
did so before or after discovering the Honda’s registration was expired . “ ‘[T]he
Supreme Court has long recognized that activating sirens or flashing lights can amount to
a show of authority.’ ” (People v. Tacardon (Dec. 29, 2022, No. S264219)
___Cal.5th___ [2022 Cal. LEXIS 7809, at *10] quoting People v. Brown (2015) 61
Cal.4th 968, 978.) However, merely parking a patrol car behind a suspect will not
convert an encounter into a detention as long as the suspect’s path is not blocked. 5
(People v. Kidd (2019) 36 Cal.App.5th 12, 21 [“Without more, a law enforcement officer
simply parking behind a defendant would not reasonably be construed as a detention”],
5 Contrary to Lowe’s assertion in his reply brief, there is no evidence that the
Honda’s pathway was blocked.
10.
disapproved on other grounds by People v. Tacardon; People v. Franklin (1987) 192
Cal.App.3d 935, 940 [same].) Similarly, “interrogation relating to one’s identity ... does
not, by itself, constitute a Fourth Amendment seizure.” (INS v. Delgado (1984) 466 U.S.
210, 216; see, e.g., People v. Leath (2013) 217 Cal.App.4th 344, 353 [“voluntary
relinquishment of a [suspect’s] identification card does not constitute a seizure as long as
the encounter is consensual under the totality of the circumstances”].)
Nor did the trial court determine whether the Honda was illegally parked. Its
ruling was predicated upon the assumption that the Honda was legally parked. In
concluding that reasonable suspicion supported the detention, we presume the Honda was
legally parked as well, as the record does not contain sufficient evidence to conclude
otherwise. Thus, Lowe’s first, second, and third claims fail to advance his argument.
As to Lowe’s fourth claim, that the officers lacked reasonable suspicion to believe
the Honda may have been stolen because of the absence of certain factors, the absence of
factors cited by Lowe did not convert the encounter into an unconstitutional detention.
Lowe specifically contends Officers Saenz and Vanzant lacked reasonable suspicion
because there was no report of a recently stolen vehicle, Ledesma was not a known car
thief, and even if Ledesma had been observed driving the vehicle, it is not a crime to
drive a vehicle owned by someone else. While the presence of any of these factors would
have bolstered the officers’ suspicion that legal wrongdoing was occurring, the absence
of these factors does not mean the officers necessarily lacked reasonable suspicion.
As our Supreme Court explained in Sokolow, supra, 490 U.S. 1 at pages 7
through 8: “The concept of reasonable suspicion, like probable cause, is not ‘readily, or
even usefully, reduced to a neat set of legal rules.’ ” Thus, whether an officer possessed
reasonable suspicion to justify a detention is evaluated on a case-by-case basis in light of
the totality of the circumstances. (Souza, supra, 9 Cal.4th at p. 231.)
We acknowledge that the circumstances observed by Officers Saenz and Vanzant
prior to detaining Lowe are also consistent with an innocent explanation. As Lowe
correctly observes, it is not a crime to drive a vehicle owned by someone else. However,
11.
“[t]he possibility of an innocent explanation does not deprive the officer of the capacity
to entertain a reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d
888, 894; Illinois v. Wardlow (2000) 528 U.S. 119, 126 [“Terry accepts the risk that
officers may stop innocent people”].)
In his final claim challenging the detention, Lowe contends that the facts presented
fail to establish that criminal activity was occurring. According to Lowe, in addition to
testimony about the fact that the area was a high crime area, “[t]he officers also testified
… that Ms. Ledesma was a transient and a habitual alcoholic who had frequently been
told to ‘move along,’ the Honda was parked in the parking lot of a closed business, and
Mr. Lowe was leaning into the car.”6 We have already recited the factors which we find
supplied the officers with reasonable suspicion to detain Lowe, and therefore, do not
repeat them.
Lowe submits that an officer’s opinion that a location is a “high crime area” does
not give rise to reasonable suspicion of criminal activity. If this were the only factor
relied upon by Officers Saenz and Vanzant in detaining Lowe, we would agree that the
detention was not supported by reasonable suspicion. Standing alone, a suspect’s mere
presence in a high crime area is insufficient to justify a detention. (See, People v.
Loewen (1983) 35 Cal.3d 117, 124 [An “ ‘officer’s assertion that the location lay in a
“high crime” area does not elevate ... facts into a reasonable suspicion of criminality’ ”];
People v. Gallant (1990) 225 Cal.App.3d 200, 210 [“the existence of a high-crime area
may be a factor to consider, but it cannot be the sole factor”]; People v. Medina (2003)
110 Cal.App.4th 171, 178 [same].) However, Lowe was not detained based solely upon
his presence in a high crime area. Indeed, the fact that the Honda was observed in a high
6 Officer Saenz further testified that Ledesma was exiting the driver’s side of the
vehicle, but he knew she did not own a vehicle, a fact which is far more relevant to our
analysis than Ledesma’s status as a transient person. Although the trial court did not
expressly credit Officer Saenz’s statement, “we imply whatever findings are necessary to
support the order.” (People v. Flores, supra, 60 Cal.App.5th at p. 988.)
12.
crime area was only one of the relevant contextual considerations in the officers’ decision
to investigate its presence in the dirt lot.
Under the totality of the circumstances, we conclude the officers had a reasonable
suspicion that Lowe was involved in criminal activity. Therefore, the detention of Lowe
was constitutionally permissible.
C. The Search of Lowe’s Backpack
1. Legal Principles
“In California, probationers consent in advance, as a condition of their probation,
to warrantless searches and seizures in exchange for the opportunity to avoid serving a
state prison term.... [¶] A probationer’s consent is considered ‘a complete waiver of that
probationer’s Fourth Amendment rights, save only his right to object to harassment or
searches conducted in an unreasonable manner.’ ” (People v. Medina (2007) 158
Cal.App.4th 1571, 1575-1576.) “Accordingly, the California Supreme Court has held
that a search of a probationer pursuant to a search condition may be conducted without
any reasonable suspicion of criminal activity and that such a search does not violate the
Fourth Amendment.” (Id. at p. 1577; People v. Bravo (1987) 43 Cal.3d 600, 607-609).)
The general rule is that “a search conducted pursuant to a known probation search
condition, even if conducted without reasonable suspicion of criminal activity, does not
violate the Fourth Amendment as long as the search is not undertaken for harassment or
for arbitrary or capricious reasons or in an unreasonable manner.” (People v. Medina,
supra, 158 Cal.App.4th at p. 1577; People v. Cervantes (2002) 103 Cal.App.4th 1404,
1408 [“[i]t is only when the motivation for the search is wholly arbitrary, when it is based
merely on a whim or caprice or when there is no reasonable claim of a legitimate law
enforcement purpose, e.g., an officer decides on a whim to stop the next red car he or she
sees, that a search based on a probation search condition is unlawful”].) Prior to
undertaking a probation search, “the officer must have some knowledge not just of the
13.
fact someone is on probation, but of the existence of a search clause broad enough to
justify the search at issue.” (People v. Douglas (2015) 240 Cal.App.4th 855, 863.)
2. Analysis
Officer Saenz testified that he immediately recognized Lowe and that he knew
Lowe was on probation, but he could not recall his name. He conducted a computer
search of Lowe through his patrol vehicle’s computer, confirmed Lowe’s probation
status, and that he was “open to search and seizure.” Officer Saenz conducted a search
for purposes of confirming that Lowe was complying with the terms of his probation. He
searched the Honda and the black backpack sitting on the front passenger’s seat, which
was within arm’s reach of Lowe during their initial encounter with him.
We conclude that the search of the Honda was authorized as a condition of Lowe’s
probation. Officers Saenz and Vanzant knew Lowe was on probation, and that he was
subject to a search condition prior to performing their search. They performed a search to
determine whether Lowe was complying with the terms of his probation, which is
permissible. (In re Marcellus L. (1991) 229 Cal.App.3d 134, 140 [“the standard
California probation clause is a valid state practice calculated to respond to the special
needs of our probation system by enabling probation officers and others to monitor the
probationer’s progress and compliance with the terms of probation”].) We detect no
constitutional infirmity upon these facts.
Lowe claims the prosecutor failed to adduce evidence establishing that the scope
of the search clause was broad enough to include a search of the backpack. He directs
this court to People v. Romeo (2015) 240 Cal.App.4th 931 (Romeo), which he asserts,
demonstrates that the search of his backpack was not shown to be within the scope of the
search authorized as a condition of his probation.
The Attorney General does not directly address Romeo. Rather, he contends that
the reasonable inference to be drawn from Officer Saenz’s testimony is that he was aware
14.
that Lowe’s probation search condition was not limited in scope. We have no doubt that
Officer Saenz subjectively understood that the scope of the probation search condition
permitted him to search not only Lowe, but items within Lowe’s control. 7 However, the
issue raised by Lowe pertains to whether Officer Saenz’s subjective belief was
objectively reasonable.
In Romeo, supra, 240 Cal.App.4th at pages 951 through 952, our colleagues in the
First District, Division 4 Court of Appeal concluded that because “a search pursuant to a
probation search clause may not exceed the scope of the particular clause relied upon”
(id. at p. 954) and, because probation search terms vary in scope, “mere knowledge that
someone is on probation and subject to search, without more, may be insufficient where
there is a challenge to the search.” (Id. at pp. 951-952.) The issue in Romeo was that the
appellate court could not determine whether the officer’s subjective belief that the
probationers had consented to a search of their residence was objectively reasonable,
because the terms of the probation order’s search clause were never introduced at the
suppression hearing. (Id. at p. 955.)
The appellate court explained, “there is nothing in the record to aid an objective
evaluation of the scope of advance consent that was given. We do not know whether the
authorized scope of search extended just to the persons of [the probationers], or to all
property under their control as well; and if it did extend to their property, we do not know
whether it extended specifically to their residence. Nor do we know whether a search
was authorized for any particular kind of contraband.” (Romeo, supra, 240 Cal.App.4th
at pp. 950-951, fn. omitted.)
We agree with Romeo’s holding. A search authorized and performed as a
condition of a subject’s probation status is predicated upon consent. While the People are
7 Lowe does not challenge whether the officers subjectively understood that the
scope of his search condition authorized a search of his property.
15.
not required to present the probation order itself (Romeo, supra, 240 Cal.App.4th at p.
952), there must be some showing by the People that the search performed fell within the
scope of the probationer’s consent, i.e., the search condition. As Romeo observed,
presentation of the search clause would suffice, as would more detailed testimony from
the officer “showing some understanding of the operative terms of probation and
connecting those terms to the need for a warrantless search.” (Id. at p. 955.)
The instant case is factually distinguishable from Romeo. Unlike Romeo, where
judicial notice was never requested (see, Romeo, supra, 240 Cal.App.4th at p. 951, fn.
14), the trial court here took judicial notice of the court file from Lowe’s probation case
without objection by Lowe. We presume the court file in Lowe’s probation case (case
No. F19905894), was before the trial court at the time of the suppression hearing.
The minute order from the February 7, 2020 sentencing hearing in Lowe’s
probation case is part of the record on appeal, as is the probation officer’s report which
recites the conditions of Lowe’s probation. The minute order shows that Lowe was
placed on formal probation for a period of three years for “attempts to prevent or
dissuade any witness or victim from attending or giving testimony.” (Unnecessary
capitalization omitted.) The search term is noted in the minute order: “Submit person
and property to search and seizure.” Thus, the officers’ subjective belief that the search
of Lowe’s backpack was authorized by the probation search condition was objectively
reasonable.
Lowe asserts the officers did not know whether the backpack actually belonged to
him until after they searched its contents. However, whether the backpack actually
belonged to Lowe is irrelevant.
The concept of “ ‘ “control” ’ ” means only “ ‘mere physical access,’ ” not
“ ‘ownership, possession, or authority over the property searched.’ ” (People v. Schmitz
(2012) 55 Cal. 4th 909, 928; People v. Cervantes (2017) 11 Cal.App.5th 860, 866-867,
16.
870-871 [extending Schmitz to vehicular searches incident to a passenger’s probation
status].)
The backpack was sitting on top of the front passenger’s seat. Officers Saenz and
Vanzant had observed Lowe bent over the front passenger’s side floorboard as they
pulled their patrol vehicle behind the Honda. The backpack was sitting on top of the
front passenger’s seat, within arm’s reach of Lowe. Given the proximity of the backpack
to Lowe, it was reasonable for the officers to conclude that Lowe had physical access to
it, and therefore, that it was subject to the search condition.
II. The Trial Court Did Not Abuse its Discretion by Declining to Strike the Prior
Strike
Lowe argues the trial court abused its discretion by denying his Romero motion
for the following reasons: (1) the trial court considered facts not in the record, such as his
lack of success in court-ordered treatment programs; (2) the court engaged in speculation
by concluding that a methamphetamine user may be the type of person that would be
more likely to use a weapon; (3) the trial court improperly considered Lowe’s conduct as
a juvenile and a young adult; and (4) the trial court erroneously believed that
extraordinary discretion was required to strike the prior strike conviction.
We conclude that although reasonable minds could disagree as to whether the
circumstances presented call for striking Lowe’s prior strike conviction, “[i]t is not
enough that reasonable people disagree about whether to strike a prior conviction.”
(People v. Avila (2020) 57 Cal.App.5th 1134, 1140.) Because the record does not
support Lowe’s assertions of error, and in light of the fact that the instant case is not one
“where no reasonable people could disagree that the criminal falls outside the spirit of the
three strikes scheme” (ibid.), Lowe has failed to demonstrate the trial court abused its
discretion by denying his Romero motion.
17.
A. Background
On January 11, 2021, Lowe filed a Romero motion, inviting the court to exercise
its discretion to strike his prior strike conviction. In his motion, Lowe provided details of
his troubled childhood, which involved physical abuse by a cousin, an absent father, and
a difficult relationship with his mother. As a result of issues arising in his youth, he
became involved with juvenile probation. Lowe also detailed a significant history of
substance abuse, including the use of methamphetamine, which he began using at the age
of 19. Lowe stated that he quickly became addicted to methamphetamine, that he began
using it daily, and that he had last used it on the day of his arrest.
Lowe referenced his prior participation in two treatment programs, but
acknowledged he was unable to complete one of those programs because of the birth of
his daughter. Prior to his arrest, Lowe had participated in Turning Point, a mental health
program, but it is unclear whether he completed the program.
At the hearing on Lowe’s Romero motion, trial counsel made an impassioned plea
to the court to strike Lowe’s prior strike conviction. In so doing, trial counsel provided
additional details regarding Lowe’s childhood, his mental health issues, and his struggle
with substance abuse and addiction. Trial counsel requested the court impose a stayed
term with the requirement that Lowe complete a treatment program.
The trial court declined to strike Lowe’s prior strike. We quote portions of the
trial court’s ruling at length as it is directly relevant to the errors asserted by Lowe:
“[THE COURT]: [C]ounsel, you’re right in terms of this Court has
some familiarity with Mr. Lowe. You know, I think early on the Court and
those juvenile partners that worked with Mr. Lowe when he was -- gosh,
this was probably about 12 years ago, so he must have been, you know,
maybe – actually probably longer ago than that. He was maybe 16 when he
first came through the courts -- the juvenile court. And I know that the
Court had referred him to some mental health treatment programs. I think
one of those was the DRC program, the Daily Reporting Center, which this
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Court feels is a really good program. They had a mental health program
that they kind of wove into the Daily Reporting Center.
“Unfortunately it didn’t work out for him. I think he was referred
through some other mental health treatment programs throughout his kind
of time going through the juvenile system. In fact, I think we also had him
go through an ACT program, which is Assertive Community Therapy
program at one point in time. And so I know that there were opportunities
for Mr. Lowe to take advantage of and, you know, a lot of times people
aren’t ready for that. And I can only, you know, presume that Mr. Lowe
wasn’t ready to make the changes that needed to be made. And it’s not
easy to make changes. It’s very, very hard to make changes and I recognize
that. But I think that Mr. Lowe had other opportunities after that.
“In fact, his first, you know, felony case, he was placed on
probation. I think that might have been the case that counsel is alluding to.
That might have been when I sentenced him in 2014 and we tried to get
him into some programming there as well. I can’t remember exactly what
type of programming it was. But I think eventually it didn’t work out.
Again, I don’t remember the specifics of why it didn’t work out, but he was
thereafter sent to prison. As recently as 2019, he was placed on a grant of
formal probation again and we find ourselves here placed on probation in
February of 2020 and this offense occurred only several months thereafter.
“So the difficulty I have is … that he’s been tried on other
alternative programs in the past and it hasn’t worked out despite a lot of
different opportunities for him. That may have a lot to do with Mr. Lowe’s
not being ready to do the change and do the hard work. I understand that,
but at the same time I have to take that into account in determining an
appropriate sentence and determining whether or not it’s appropriate to
strike his prior strike. Based upon the totality of all the circumstances, I
don’t feel it’s appropriate to exercise extraordinary discretion and strike his
prior strike. He was on probation for it at the time that this occurred. I
mean I kind of agree that, you know, this isn’t the most serious offenses in
terms of possession of a firearm. It doesn’t appear as though there was any
immanent [sic] use of it. It may very well have been that he felt he needed
it for some type of protection of his own because he was living on his
streets or whatever else, or maybe because of some paranoia based upon
meth use. I don’t know. He certainly knew, though, that it was
inappropriate and unlawful for him to possess that weapon and possessory
crimes are possessory crimes. They usually don’t involve violence. They
usually involve somebody who knows that they shouldn’t have them and
ends up having them.
19.
“The problem is also is that somebody in Mr. Lowe’s condition may
be the type that would be much more readily --somebody that would use a
weapon because of history, because of meth use, because of a lot of other
things. So I mean in the grand scheme of things, this type of offense is
generally not extraordinarily serious, but with Mr. Lowe’s history, it’s
certainly concerning that he had a firearm. That all being said, I’m not
going to strike the prior strike. However, knowing Mr. Lowe’s prior
history, knowing his mental health conditions and his addiction to
methamphetamine, the Court definitely has some empathy for his
situation.”
After declining Lowe’s Romero motion, the trial court sentenced him to a prison
term of two years eight months for possession of a firearm. The trial court imposed a
stayed sentence of two years eight months for possession of a short-barreled firearm, and
imposed a concurrent sentence of two years for Lowe’s violation of his parole.
B. Legal Principles
The Three Strikes law requires the application of an alternative sentencing scheme
in “every case where the defendant has at least one qualifying strike”—a prior serious
and/or violent felony—unless the trial court concludes “for articulable reasons” that the
defendant falls outside the Three Strikes sentencing scheme. (People v. Strong (2001) 87
Cal.App.4th 328, 337-338.)
A trial court may strike a prior serious felony conviction allegation “in furtherance
of justice.” (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) When exercising its
discretion, the court must consider whether the nature and circumstances of the
defendant’s present felonies and prior serious or violent felony convictions, and the
defendant’s background, character, and prospects, render the defendant “outside the
[Three Strikes] scheme’s spirit.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Our Supreme Court has explained that only extraordinary circumstances justify a
finding that a career criminal is outside the Three Strikes law. (People v. Carmony
(2004) 33 Cal.4th 367, 378.) Therefore, “the circumstances where no reasonable people
could disagree that the criminal falls outside the spirit of the three strikes scheme must be
20.
even more extraordinary.” (Ibid.; see, e.g., People v. Avila, supra, 57 Cal.App.5th at p.
1151, [“Life in prison for destroying fruit, even when done by someone with a criminal
record in the course of an attempted robbery, robs recidivist sentencing of its moral
foundation and renders the solemn exercise of judicial authority devoid of meaning”].)
“ ‘ “In the absence of such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ ” (People v. Carmony, at pp. 376-
377.)
The refusal to strike a prior conviction is reviewed for an abuse of discretion.
(People v. Carmony, supra, 33 Cal.4th at p. 375.) A court abuses its discretion when, for
example, it is unaware of its discretion, or it considers impermissible factors when
declining to strike a prior felony. (Id. at p. 378; see, e.g., People v. Gillispie (1997) 60
Cal.App.4th 429, 434 [impermissible factors may include consideration of the
defendant’s race or national origin].) However, “[w]here the record demonstrates that the
trial court balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have
ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305.
310.)
C. Analysis
We begin our analysis by observing that while Lowe was only 25 years old at the
time of his commitment offense, his record bears out a lengthy criminal history,
commencing from when he was 13 years old. As a juvenile, Lowe sustained multiple
juvenile court adjudications, including seven counts of failing to obey a lawful order of
the juvenile court (Welf. & Inst. Code, § 777) between 2009 and 2012.
Even if we were to exclude consideration of Lowe’s juvenile delinquency
proceedings, his adult criminal history is significant. Lowe has suffered prior convictions
21.
involving the use or threat of violence. In 2014, when Lowe was 19 years old, he was
convicted of battery on a cohabitant (§ 243, subd. (e)(1)), willfully inflicting corporal
injury on a cohabitant (§ 273.5, subd. (f)(2)), and dissuading a witness (§ 136.1, subd.
(b)(1)). Then, in 2019, he was convicted of attempting to dissuade a witness. (§ 136.1,
subd. (a)(1).) These are only the convictions we find relevant.
Between 2014 and 2018, Lowe committed numerous violations of the terms of his
post-release community supervision (PRCS) and probation, and he was on formal
probation at the time of the current offense. He has a demonstrated history of failing to
comply with court orders, including, the failure to participate in various court-ordered
treatment programs.
The record simply does not show extraordinary circumstances by which Lowe
should be deemed to fall outside of the Three Strikes law. (See, People v. Strong, supra,
87 Cal.App.4th at p. 332.) Nonetheless, Lowe asserts the trial court erred in denying his
Romero motion for several reasons, each of which we address below.
1. Consideration of Facts Not in the Record, Engaging in Speculation,
and Consideration of Facts Not Probative of Future Conduct
Lowe contends the trial court erred by considering facts not in the record in
denying his Romero motion, including: his purported lack of success in receiving mental
health treatment when he was a juvenile, and another program referenced but not
described by the trial court.
Although the record does not set forth the full extent of Lowe’s participation in
various treatment programs, there is evidence showing that he was unable to complete
multiple treatment programs. In his written Romero motion, Lowe acknowledged that he
was unable to complete the Westcare program in 2015. By his own admission, he
dropped out of the program after one week. Further, the trial court stated that it had
presided over some of Lowe’s juvenile delinquency proceedings, it had referred Lowe to
some mental health treatment programs, but Lowe had failed to complete those programs.
22.
Lowe did not object to the trial court’s statement at the hearing on his motion, he
did not proffer evidence contradicting the trial court’s statements, nor does he now
suggest that the court’s statements are inaccurate. We therefore presume the court’s
statements are accurate.
Lowe suggests that the trial court engaged in improper speculation by concluding
that methamphetamine users may be more likely to engage in violence, specifically, by
using a weapon. He contends that the trial court’s statement is inapplicable to him
specifically because he has never been convicted of an offense involving the use of a
firearm. We disagree.
The trial court stated that based upon Lowe’s use of methamphetamines and “a lot
of other things” it was concerning that Lowe had a firearm. As we read the record, the
court did not decline to strike his prior strike based upon the fact that Lowe is an admitted
methamphetamine addict (See, e.g., People v. Avila, supra, 57 Cal.App.5th at p. 1148), or
because his commitment offense could have been considerably more serious. (Id. at p.
1142.) Rather, the trial court was concerned about Lowe potentially using a firearm at
some future point given a number of factors. Based upon Lowe’s prior convictions, some
of which involved violence or the threat of violence, his admitted addiction to
methamphetamine, and the fact that Lowe had a firearm in his possession, the trial court’s
concern was fair.
2. Lowe’s Juvenile Offenses
Next, Lowe contends the trial court erred by considering his prior juvenile
adjudications. Lowe contends: (1) his juvenile adjudications are remote in time in
relation to the current offense; (2) the trial court erroneously considered Lowe’s lack of
success in treatment programs, which he contends, has no bearing on the question of
whether his prior strike should be stricken; and (2) because the Legislature has
recognized the human brain is not fully developed until the age of 20 or 25, Lowe’s
conduct before he reached the age of 20 is not relevant to his likelihood of recidivism.
We reject his assertions.
23.
First, even assuming Lowe’s juvenile court adjudications are remote in time in
proximity to the current offense, the record does not affirmatively demonstrate that the
trial court placed any weight upon Lowe’s adjudications in declining to strike his prior
strike. The court stated it was familiar with Lowe because it had presided over some of
his juvenile court adjudications—a fact which we cannot expect the trial court to
ignore—and that it had referred him to treatment programs, which Lowe had failed to
complete. With the exception of Lowe’s persistent failure to complete court-ordered
treatment programs, the record contains no indication that the trial court found Lowe’s
juvenile delinquency proceedings to be particularly relevant.
Second, Lowe contends the court erred by considering his lack of success in court-
ordered treatment programs. This however was a relevant consideration that was put in
issue by Lowe’s trial counsel. Trial counsel urged the court to strike Lowe’s prior strike,
to impose a stayed term, and to order Lowe to participate in a long-term in-patient
treatment program. To accomplish this, the trial court would have to strike the prior
strike. (See, § 1170.12, subds. (a) & (b).)8 Thus, Lowe’s prior performance in court-
ordered treatment programs was pertinent to the question of whether the court should
strike his prior strike.
Finally, the record contains no evidence showing the trial court failed to consider
mitigating evidence tied to Lowe’s youth, specifically, the fact that his brain was
presumably not fully developed at the time of his current and prior offenses. At the
8 The sentencing court is prohibited from imposing a suspended sentence and
granting a term of probation when a defendant admits a strike prior within the meaning of
sections 667, subdivisions (c) and (e), and 1192.7, subdivision (c), and/or section 1192.7:
“[I]f a defendant has been convicted of a felony and it has been pled and proved that the
defendant has one or more prior serious [and/]or violent felony convictions, as defined in
subdivision (b), the court shall adhere to each of the following: [¶] (1) There shall not be
an aggregate term limitation for purposes of consecutive sentencing for any subsequent
felony conviction. [¶] (2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any prior offense.”
(§ 1170.12, subd. (a), italics added.)
24.
hearing on Lowe’s motion, trial counsel cited various factors supporting the conclusion
that Lowe had a difficult childhood, a history of drug use and addiction, and that he
suffered from mental health issues. Trial counsel added, “Obviously I’m no expert, but it
seems like the consensus in the scientific community is that someone’s brain doesn’t
fully develop until closely the age of 25. So just given the trauma that he experienced at
a young age and the drug use, I feel like Mr. Lowe would benefit from mercy in this
case.”
The record does not show the trial court placed any weight on Lowe’s juvenile
adjudications in denying his Romero motion. However, assuming Lowe’s criminal
conduct as a juvenile was considered by the trial court, we presume the court gave due
consideration to the fact that Lowe’s judgment and decision-making ability were
impaired at the time. (People v. Myers, supra, 69 Cal.App.4th at p. 310 [“[t]he court is
presumed to have considered all of the relevant factors in the absence of an affirmative
record to the contrary].)
Lowe was 25 years old or younger at the time of his commitment offenses and his
prior strike offense. Thus, he still possessed a youthful brain at the time of his current
and prior offenses. In light of trial counsel’s argument requesting the court consider this
factor, and in the absence of any evidence to the contrary, we presume the court
considered this mitigating factor. We conclude that none of the errors asserted by Lowe
demonstrate an abuse of the trial court’s discretion.
3. The Legal Standard Applied by the Trial Court
Finally, Lowe argues that the trial court erred in believing that extraordinary
discretion was required to strike the prior strike. Following a lengthy discussion, the trial
court below declined to strike Lowe’s prior strike, stating, “Based upon the totality of all
the circumstances, I don’t feel it’s appropriate to exercise extraordinary discretion and
strike his prior strike.”
As the Attorney General correctly observes, “the circumstances must be
‘extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the
25.
very scheme within which he squarely falls once he commits a strike as part of a long and
continuous criminal record, the continuation of which the law was meant to attack’ … the
circumstances where no reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme must be even more extraordinary.” (People v.
Carmony, supra, 33 Cal.4th at p. 378.)
We do not interpret the trial court’s statements to mean that it applied an incorrect
legal standard in determining whether to strike Lowe’s prior strike conviction. In our
view, the trial court’s statement meant the evidence presented did not constitute a
showing of extraordinary circumstances such that “no reasonable people could disagree
that [Lowe] falls outside the spirit of the three strikes scheme.” (People v. Carmony,
supra, 33 Cal.4th at p. 378.) Lowe’s assertions to the contrary are unpersuasive.
III. Imposition of the Restitution Fine
Lowe contends the trial court erred by imposing a $300 restitution fine (former
§ 1202.4, subd. (b)(2)), and a matching stayed parole revocation restitution fine
(§ 1202.45). According to Lowe, the record does not contain substantial evidence
establishing his ability to pay the restitution fines, and the fact that the court declined to
impose a court operations assessment (§ 1465.8) or a criminal conviction assessment
(Gov. Code, § 70373), supports the conclusion that he is unable to pay the fine.
Lowe urges this court to analyze imposition of the restitution fine under the due
process analysis applied by the court in People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas). He does not challenge imposition of the restitution fine under the excessive
fines clause of the federal and state Constitutions.
The Attorney General argues the issue must be analyzed under the excessive fines
clause of the federal and state Constitutions, in which a defendant’s ability to pay is only
one factor to consider in determining whether a punitive fine is unconstitutionally
excessive. (See United States v. Bajakajian (1998) 524 U.S. 321, 337-338 [in
determining whether a fine is constitutionally excessive, the court must consider: (1) the
26.
defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the
penalties imposed in similar statutes; and (4) the defendant’s ability to pay].)
Lowe does not address any of the three other factors discussed in United States v.
Bajakajian; he argues only that he lacks the ability to pay the restitution fines under the
due process analysis applied in Dueñas.9
Lowe concedes that he failed to challenge imposition of the restitution fines
below. Indeed, the record contains no indication that Lowe requested an ability to pay
hearing, or that he otherwise challenged imposition of the restitution fines on due process
grounds or equal protection grounds (see, Dueñas, supra, 30 Cal.App.5th 1157), or under
the excessive fines clause of the federal and state Constitutions (see, Kopp, supra, 38
Cal.App.5th at pp. 96-97, review granted). He contends that if this issue is deemed
forfeited, his trial counsel rendered ineffective assistance of counsel by failing to
challenge imposition of the restitution fines at sentencing.
We conclude Lowe has forfeited his challenge to the restitution fine by failing to
object below. Insofar as Lowe contends trial counsel rendered ineffective assistance of
counsel by failing to preserve this issue, we find no error.
9 The question of whether a court must consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments and, if so, which party bears the
burden of proof regarding the defendant’s ability to pay, is currently pending review
before the California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review
granted Nov. 13, 2019, S257844 (Kopp).) In Kopp, the appellate court held the
imposition of punitive fines should be challenged and analyzed under the excessive fines
clause. The court further held, “there is no due process requirement that the court hold an
ability to pay hearing before imposing a punitive fine and only impose the fine if it
determines the defendant can afford to pay it.” (Id. at pp. 96-97.)
Lowe’s failure to challenge imposition of the restitution fines on due process
grounds and under the excessive fines clause is puzzling. Notwithstanding, because
Lowe did not object below and he does not raise a challenge to the restitution fine as
unconstitutionally excessive on appeal, we do not address the Attorney General’s
argument that the fine is constitutional under the Eighth Amendment.
27.
A. Lowe’s Dueñas Claim Has Been Forfeited
Lowe’s sentencing hearing was held on February 4, 2021, more than two years
after the Second District, Division 7 Court of Appeal filed their opinion in Dueñas,
supra, 30 Cal.App.5th 1157 on January 8, 2019. Although the trial court imposed the
minimum amount authorized by statute, which expressly precludes consideration of a
defendant’s ability to pay as a basis for waiving the fine (see § 1202.4, subd. (c)), we
cannot say with confidence that an objection to the restitution fine on constitutional
grounds would have been futile.
The law remains unsettled as to whether the restitution fine may be imposed
without regard to a defendant’s ability to pay. (See, Dueñas, supra, 30 Cal.App.5th at p.
1168-1169, 1172 [finding that due process prohibits a trial court from imposing court
assessments under section 1465.8 and Government Code section 70373, and requires the
trial court to stay execution of any restitution fines until it ascertains the defendant’s
ability to pay those assessments and fines]; but see, People v. Aviles (2019) 39
Cal.App.5th 1055, 1061 [disagreeing with Dueñas’s due process analysis and concluding
constitutional challenge to fines, fees and assessments should be made under the
excessive fines clause]; Kopp, supra, 38 Cal.App.5th at pp. 95-96, review granted
[following Dueñas as to court-imposed assessments, but not restitution fines]; People v.
Son (2020) 49 Cal.App.5th 565, 592-596 & fn. 20 [concluding that a defendant is not
constitutionally entitled to an ability to pay hearing prior to imposition of restitution
fines, which are punitive].)
Moreover, the trial court below declined to impose a court operations fee
(§ 1465.8) and a criminal conviction fee (Gov. Code, § 70373) based upon Lowe’s
“inability to pay.” Thus, there is evidence supporting the conclusion that Lowe lacks the
ability to pay not only the assessments, which typically total $70, but by implication, the
greater $300 restitution fine. Nonetheless, a timely objection to imposition of the
restitution fine was not raised below.
28.
We conclude Lowe forfeited his challenge the restitution fine on due process
grounds by failing to object or otherwise timely raise the issues below. We therefore turn
to Lowe’s claim of ineffective assistance of counsel.
B. No Ineffective Assistance of Counsel Established
To establish a claim of ineffective assistance of counsel, Lowe must show: (1) his
counsel’s performance fell below an objective standard of reasonable competence and (2)
he was prejudiced from it. (Strickland v. Washington (1984) 466 U.S. 668, 687-
688; People v. Lucas (1995) 12 Cal.4th 415, 436.) He must demonstrate a reasonable
probability a different result would have occurred absent the alleged errors. (People v.
Williams (1997) 16 Cal.4th 153, 215.) We conclude Lowe has failed to meet his burden
of showing ineffective assistance of counsel.
In People v. Son, supra, 49 Cal.App.5th at page 577, the lead opinion of this court
rejected the appellant’s claim that he was entitled to an ability to pay hearing prior to
imposition of restitution fines. As the lead opinion explained, “fines imposed as
punishment ([t]here, the restitution fine) are subject to the existing constitutional rule that
monetary punishments in and of themselves need not be adjusted in accordance with
ability to pay.” (Ibid.) In light of our conclusion that Lowe was not entitled to an ability
to pay hearing on the restitution fines, which are punitive, we conclude that Lowe has
failed to demonstrate trial counsel’s performance “fell below an objective standard of
reasonableness” (Strickland v. Washington, supra, 466 U.S. at pp. 687-688) by failing to
object to imposition of the fine below.
C. Lowe’s Request for Judicial Notice
On October 28, 2021, Lowe filed a motion for judicial notice, requesting this court
take judicial notice of the Solicitor General’s answering brief on the merits, filed in our
Supreme Court in Kopp. The Attorney General filed an opposition to Lowe’s motion,
suggesting that Lowe may be seeking to judicially estop him from making a contrary
legal argument to any arguments made in Kopp. While court records may be the proper
29.
subject of judicial notice (see, Evid. Code, § 452, subd. (d)), a party’s legal arguments in
an unrelated matter are generally not. His motion requesting judicial notice is denied.
DISPOSITION
The judgment of conviction is affirmed.
SMITH, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
DE SANTOS, J.
30.